Resources and Rights: Court Decisions in the United Kingdom

Abstract

Abstract This chapter is about the judicial review of resource-allocation decisions by what I shall call “primary institutions.” Such primary institutions include public authorities responsible for health care, for welfare, and for education. Among “some very obvious generalizations-indeed truisms-concerning human nature and the world,” Hartincluded “limited resources.” Primary institutions inevitably encounter this truth, sometimes in heart-rending and tragic circumstances. Understandably, their resource-allocation decisions can cause acute disappointment, and sometimes they are challenged in the courts by way of application for judicial review. This chapter seeks to explore and learn from the styles of reasoning deployed by judges in exercising their review function with respect to resource-allocation decisions of primary institutions. These concerns grow in part out of current debate in Britain not only as to the future, if any, of the welfare state in general and the National Health Service (NHS) in particular, but also as to the legitimacy of judicial review, which appears to some people to lack sufficient, if any, democratic warrant but which has nonetheless become well established as a central feature in the relationship between the citizen and the state in modern Britain. The growth in public law in the last third of the twentieth century is indeed remarkable.2 By the time of this writing it had become a common place that the British welfare state was seriously under resourcedby the national government, which claimed electoral warrant for and curried electoral favor with their low-taxation policies.